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Rex Tillerson’s Other Transparency Problem

The secretary of state made news this week for dodging reporters. But a less-covered legal case raises even more serious questions about his penchant for secrecy.

Alex Wong/Getty

In another news cycle, the story that broke on Wednesday about Secretary of State Rex Tillerson would have been a bombshell. Instead, buried deep beneath the furors over Russia, health care and presidential “wiretapping,” it hardly broke at all. But it should not get lost in the shuffle: The latest in Tillerson’s evolving email scandal goes right to the heart of that other terrifying thing about this new administration—its addiction to secrecy, and its unprecedented hostility to the usual forms of public transparency that democracy requires. And it only adds to the already-mounting questions about whether the former CEO and career-long employee of Exxon/Mobil has any business being secretary of state—a job he says he didn’t even want in the first place.

Here’s the Tillerson news you should have heard: In front of a judge in New York, attorneys for ExxonMobil admitted they had lost as much as a year’s worth of Tillerson’s e-mails, sent as CEO under the alias “Wayne Tracker.” (His middle name is “Wayne.”) Those emails had been demanded by New York State Attorney General Eric Schneiderman, because they’re key to his investigation of how Exxon, under Tillerson’s watch, may have deliberately—and illegallymisled its shareholders about the risks it knew were posed by climate change. (And, thus, the risks it posed to Exxon’s profits.)

Schneiderman says Tillerson used this alias for seven years to exchange messages about about “risk-management issues related to climate change.” Exxon claimed this week that almost all of those Tillerson emails were “lost”—wiped clean from the system, for perfectly innocent reasons.

You might think that a burgeoning email scandal involving the new secretary of state was guaranteed to be a cable-news sensation. After all, the trotted-up “scandal” around Hillary Clinton’s use of a private email server while serving in that office became the defining controversy of the 2016 election. It helped elect Trump—and ultimately gave us Tillerson and his email troubles.

This one might even involve another problematic server, for goodness sakes. This week, Schneiderman accused Exxon of using “carefully chosen language” in its court filings to obscure the fact that the Wayne Tracker emails were housed on (sorry, this is a mouthful) “secondary hardware systems that are or were physically separated from the primary hardware systems from which the bulk of Exxon’s production appears to have originated.” Exxon said the accusation was “misplaced,” and that Schneiderman’s speculation was “unfounded.” Still, the court demanded that Exxon work to figure out how to recover those “lost” emails and report back to the court by March 31.

Tillerson’s situation is different from Clinton’s in important respects. There were probably no potential state secrets involved in his communication, and there’s nothing inherently amiss about a CEO using an alias email account to separate and organize emails. But as with Clinton, the bigger problem isn’t Tillerson’s potential legal exposure. It’s the pattern of secrecy in our new secretary of state.

Tillerson’s resistance to public transparency was already making news this week. As secretary of state, he hadn’t granted a single interview until his first major trip to Asia, last week, in the midst of a crisis in North Korea. He allowed only one reporter—a friendly one—to come along. (And she did not file daily press pool reports, also breaking with tradition.) The scorned press went ballistic.

They haven’t been quite so fired up about the Exxon emails. But there’s a clear connection between the Exxon case and Tillerson’s avoidance of transparency as secretary of state. Exxon is not a private company—it is publicly held by 2.5 million shareholders. That means its CEO has a legal obligation to be honest with shareholders about risks.

A secretary of state has similar obligations, on an infinitely larger stage. That’s why Tillerson’s email troubles have such high stakes. Once the public starts to catch on to the Exxon story, the questions it raises will be clear: If Tillerson did take pains to hide financial risks from shareholders in a public company, isn’t it reasonable to worry that he’ll employ similar tactics in his new job? How far might Trump’s secretary of state go to hide damaging information—or any information—from the people he owes it to?

Schneiderman first subpoenaed Exxon in 2015, demanding “extensive financial records, emails, and other documents” relating to its climate change research. The case grew out of stories published by both Inside Climate News and The Los Angeles Times, which reported that Exxon knew as far back as 1977 that its product was contributing to climate change—but continued to give millions of dollars to politicians and groups that deny climate science, while publicly downplaying the scientific certainty and misleading shareholders about the risks global warming presents to the company’s profitability. The claims are similar to those made by the U.S. Department of Justice in its massive racketeering case against Big Tobacco, which found the industry had engaged in a decades-long cover-up to hide the health impacts of smoking.

Schneiderman is trying to get to to the bottom of whether Exxon engaged in a cover-up of its own, both before and during Tillerson’s tenure as CEO. Under both securities and consumer-protection laws, publicly held companies are required to be honest about even the most miniscule risks, so that investors can make informed decisions about where to put their money. Climate change constitutes an enormous businesses risk, obviously—and the Securities and Exchange Commission agrees.

Though he first demanded communications from Exxon’s management 16 months ago, Shneiderman said this week that Exxon didn’t disclose the existence of Tillerson’s “Wayne Tracker” account until earlier this month—and then, it was only after Schneiderman’s office independently discovered it. A year’s worth of those emails, which were potentially stored separately from the rest of Exxon’s company emails, are now allegedly lost.

The company’s attorneys have vehemently denied that they ever misled investors—or misled anyone about climate science. As for Tillerson’s “Wayne Tracker” account, they say it’s normal for company CEOs to use alias email accounts: It helps them keep track of, and separate, important emails from the deluge of less important ones. And Exxon has an explanation for why the emails were lost, its attorneys said in this week’s court filing. The Wayne Tracker account was miscategorized as “non-personal,” and because of “standard configurations” on Exxon’s Microsoft Exchange email system, many non-personal account emails were automatically deleted after a period of time. They contend this happened before Schneiderman’s request to hand over the emails.

Exxon Letter to the Court 3.21.17 by Emily Atkin on Scribd

Schneiderman and his attorneys balk at this excuse. They say Exxon has “continuously delayed and obstructed the production of documents from its top executives,” particularly Tillerson. Yes, they say, Exxon has produced more than 400,000 documents since it was hit with Schneiderman’s subpoena 16 months ago. But of those 400,000, only 160 were actual emails from Exxon management. The Tillerson emails they did receive contained little relevant information, the attorney general’s office says.

Exxon maintains that the case amounts to a “highly politicized and bad faith investigation” by Schneiderman, the left-leaning New York attorney general who has been no stranger to the political spotlight. Schneiderman, according to Exxon’s attorneys, has a “well-established preference to litigate his case in the press rather than court.”

The attorney general says Tillerson’s “lost” emails now raise larger questions about not only Exxon’s potential fraud, but about how the company handles internal investigations. Schneiderman’s press secretary, Amy Spitalnick, says the company’s handling “should be deeply concerning to anyone who believes in accountability and the rule of law.”

She’s right: It should concern us all. Since Tillerson was sworn in as secretary of state less than two months ago, his responsibilities to be transparent and accountable, to allow into a window into his conduct as the nation’s chief foreign policy officer, have ballooned. He no longer has 2.5 million shareholders to answer to; he has 314 million citizens. But he’s so far resisted calls for public accountability—refusing to field even a single question from reporters in his few public appearances since his confirmation.

Tillerson has attempted to brush off his aversion to transparency as a matter of personal preference—he just “doesn’t need” the spotlight, he says. But in that lone friendly interview he granted last week, he made it clear that staying mum is a long habit with him. During his decades at ExxonMobil, he said, he had “been very successful diplomatically” by staying out of the public eye. That might be a winning strategy for certain CEOs, but it’s a disastrous approach for Trump’s new secretary of state. As the public starts to catch on to the other email scandal, the question will be more and more pressing: Is a deeply ingrained habit of secrecy what we want, and need, in America’s top diplomat?